We’re not the font of all legal knowledge; we don’t claim to be.  Every now and then we come across material published by our colleagues at other firms defending prescription medical product liability litigation that we think would be valuable to our readers, so we ask if we can republish.  That’s how our 50-state survey on state tolling statutes came about.  It was a piece by another firm that we thought would be useful to our readers dealing with unsuccessful would-be forum shoppers, so we inquired, and they were gracious enough to allow us to distribute their research to our readers.

Recently, we were duly impressed by a Greenberg Traurig class action-related “advisory” entitled “Class Action Fairness Act Advanced Removal Strategies.”  It was written by Greenberg partners, Ryan C. Bykerk, and Christopher S. Dodrill.  This advisory is richly enough researched that it looks and reads like a law review article – which we at the Blog appreciate.  Here’s a thumbnail list of the CAFA topics covered:

  • Timing of CAFA removal, including defense ability to remove on their “own information” at any time.
  • How courts respond to plaintiffs gaming CAFA’s 100-member “mass tort” threshold.
  • Sufficiency of removal allegations concerning CAFA minimal diversity.
  • Citizenship of various types of entities involved in CAFA litigation.
  • Determining and pleading CAFA’s $5 million amount-in-controversy requirement.
  • Post-removal attempts by plaintiffs to destroy CAFA jurisdiction.
  • Defense-side jurisdictional discovery in CAFA cases.
  • Viability of successive CAFA removals.

We’ve uploaded a copy of this piece here, or if you’re so inclined, you can read it on Greenberg Traurig’s website, here.

On multiple occasions the Blog has addressed CAFA-related topics, occasionally with research posts but more frequently discussing new significant decisions.  We’re pleased to add this piece to the resources available to our readers.

We have written a number of times on CAFA, the Class Action Fairness Act.  The decisions and subjects we have covered can be pretty technical and even numerical. After all, one of the central provisions of CAFA has a number in it: a “mass action” is one “in which monetary relied claims of 100 or more persons are proposed to be tried jointly,” allowing removal in some situations. The Act was intended to address abuses seen in certain state courts through a particular brand of litigation tourism. In particular, in passing CAFA, the state courts of certain counties in southern Illinois were called out for allowing lots of claims from residents of many states to be pursued in places the plaintiffs’ lawyers preferred, either in purported class action or in actions that smelled a lot like class actions but were not labeled as such. (We can set aside personal jurisdiction and a bunch of other procedural considerations relevant to litigation tourism for now to focus on the CAFA part of this.) Because the enactment of CAFA did not end the plaintiffs’ lawyers desire to keep their money train rolling in their favorite places, we see two other recurring numbers in our posts on CAFA. There have been a bunch of cases from the Seventh Circuit, which includes Illinois, and from the Ninth Circuit, which includes what is now probably the plaintiffs’ lawyers’ favorite spot for mass litigation tourism, California. Thus, it is not surprising that these are the two circuit courts with “bad” decisions on what could be a critical issue in CAFA jurisprudence. Because there are two circuit courts with “good decisions,” the Tenth and Eleventh, there is a split that provides good grounds for the United States Supreme Court to take up the issue.

We have read the cert petition in Pfizer, Inc. v. Adamyan and wanted to highlight it for our readers. This case relates to more than 4200 Lipitor plaintiffs who were not swept up in the mass summary judgment rulings from the MDL that were affirmed by the Fourth Circuit. (We wrote about those decisions a bunch, including awarding top ten honors twice. See here, here, here, and here.)  The procedural history of cases at issue in Adamyan is complicated and we would refer readers to the discussion in the petition. The CAFA issue, however, is fairly straightforward and comes up in state court mass torts (or “mass actions”) fairly often. To begin to be eligible for removal as a “mass action” those 100 or more claims must be “proposed to be tried jointly.” Well, proposed by whom? If the defendant(s) propose it, then it does not count because the statute says that explicitly. If the plaintiffs propose it, then it does count. Lots of judicial ink has spilled on that, mostly on the issue of how direct the proposal has to be and what counts as being tried jointly, but there is agreement. In some instances, however, the court might make a proposal on its own to try a triple- or quadruple-digit number of claims together. Courts in places where such mass torts tend to be brought do make those proposals. They may even, like California, have procedures in place for coordinated proceedings that sound a lot like automatic “mass actions” under CAFA.

That is the issue as to which the circuits are split: what if the proposal that would otherwise trigger removal under CAFA’s mass action comes from the court sua sponte? We previously decried a decision from the Ninth Circuit that said that the removal of an action with hundreds of prescription drug claims was not removable, in part because the plaintiffs did not make a “proposal.” That case was not amenable to cert, but Adamyan is. Were we to say cert should be granted and the manufacturer should win before the Supreme Court, then our critics may have more ammunition to support what they say anyway—that we are defense hacks. Were we to say “everything the petitioner in Adamyan argues is right and persuasive,” then we might be defense hacks. Instead, we suggest that our readers read the petition with the additional question in mind of whether it makes sense that sua sponte court proposals or decisions on joint trials should count under CAFA. After all, CAFA was intended to put more cases in federal court as a way to avoid unfairness to out-of-state defendants. That is what the legislative history of CAFA made clear and the Supreme Court has recognized in prior decisions. CAFA also could have said a proposal by plaintiffs was required to trigger removal. Instead, it said that a “mass action” is one “in which monetary relied claims of 100 or more persons are proposed to be tried jointly,” and expressly excluded cases where the defendant(s) make the proposal. So, we will not argue the position that the petitioner argues well without us.

We would add a practical note, informed by experience in some of the courts that keep giving rise to decisions on CAFA removal. Plaintiff lawyers like certain courts. They may be really comfortable there for various reasons. The judges may get elected. They may know the judges. They may know the coordination or mass tort procedures well. There could be many reasons why the plaintiff lawyers like being in a certain court against a defendant from somewhere else, even with a bunch of plaintiffs from somewhere else. (A defense lawyer might have similar preferences about a court in her backyard, but defendants do not really pick where they get sued.) Knowing that an on-the-record proposal by plaintiffs’ counsel for 100 or more plaintiffs for a joint trial, even a proposal that is more implicit than explicit, might lead to removal, is it at all possible that a judge in a jurisdiction that the plaintiff lawyers favored might frame the proposal for the joint trial as sua sponte?  Sua sponte is Latin for “on his/her/its own will,” but it also can suggest suddenness.  If there is ever going to be a question about whether a judge’s order that a joint trial be held is anything other than a sudden and independent decision of the best way to handle the court’s docket in a way that is fair to all parties, then surely it makes sense that such an order can trigger removal, if the criteria are otherwise met, as long as a defendant did not push for it simply as a tool for removal. The suspicion that there was an off-the-record request from the plaintiffs, that joint trials are always ordered because they favor the plaintiffs, or some other version of a nod and wink to help one side should be reason enough to get the case out of that state court. When a single case can have 4287 plaintiffs, like Adamyan did when the defendant removed, there are plenty of reasons to view the decision on state or federal court as implicating fundamental notions of fairness. Of course, where federal courts rule as they did in the Lipitor MDL and get rid of cases en masse for lacking competent proof of causation, you can see that the ultimate choice of state or federal court can really matter.

 

Plaintiff lawyers must be mighty allergic to federal court.  They perform all sorts of maneuvers to avoid CAFA removal of mass actions.  For example, they will artificially subdivide their cases into groups of under 100.  And/or they will disclaim any intent to try the cases together.  Do these circumventions work?  Perhaps most important, since so many of these CAFA avoidances occur in California, will such circumventions work in the Ninth Circuit?

Maybe.

At first, the Ninth Circuit permitted these evasions in a couple of decisions, creating a split with the Seventh and Eighth Circuits.  But then the Ninth Circuit took the cases up en banc.  The Ninth Circuit is so large that an en banc panel does not include all of the judges.  But an entire en banc panel always includes the Chief Judge.  That turned out to be important in the 2014 Corber en banc case because the dissenter in one of the earlier panel decisions was Chief Judge Gould.  Guess who authored the Corber en banc opinion?  Chief Judge Gould took a pragmatic approach to what counts as a “joint trial” for purposes of CAFA. That approach put the Ninth Circuit in alignment with the Seventh and Eighth Circuits and concluded that a proposal for a joint trial may be made implicitly as well as explicitly. Yes, it would be simpler to administer a bright line rule requiring plaintiffs to utter the magic words “joint trial,” but such a rule “would ignore the real substance” of plaintiffs’ proposals.  The plaintiffs had sought coordination “for all purposes.”  They had argued in the California state court that coordination was needed to avoid “the danger of inconsistent judgments and conflicting determinations of liability.”  That smells like a request for something that would actually or functionally be a joint trial.  The Ninth Circuit held that CAFA removal was proper under such circumstances.

Goodbye circuit split, hello sanity.  We praised the Corber decision here.

But the Corber opinion possibly suggested a road map — or another set of magic words — that might work to make federal jurisdiction disappear.   What if plaintiffs explicitly limited their request for coordination “solely for pretrial purposes”?  We all know that such a statement would be disingenuous.  But would it work?  Would it keep the cases in the pro-plaintiff maw of California’s coordination process?

The other shoe has fallen (sort of), the magic words have been uttered (sort of), and plaintiffs followed the road map (sort of). In Dunson et al. v. Cordis Corp., 2017 U.S. App. LEXIS 6446 (9th Cir. April 14, 2017), the Ninth Circuit upheld a remand of a mass action because the plaintiffs had not proposed a joint trial. (We have written about the Dunson case before.) Instead, the plaintiffs had argued that consolidation “for purposes of pretrial discovery and proceedings, along with the formation of a bellwether-trial process, will avoid unnecessary duplication of evidence and procedures in all of the actions, avoid the risk of inconsistent adjudication, and avoid many of the same witnesses testifying on common issues in all actions, as well as promote judicial economy and convenience.” We think this should be enough for CAFA removal, but the Dunson court held otherwise.

As an initial matter, the court says the appeal would be easy to resolve if the plaintiffs had simply sought consideration for “all pretrial purposes, including discovery and other proceedings,” and stopped there.  The Dunson court would easily have held that there was no request for a joint trial and thus, no basis for CAFA jurisdiction.  But the plaintiffs did not stop there.  They went on to wax poetically about the virtues of a bellwether trial process.  Do we now have a request for a joint trial?

The Dunson court held that it all came down to what sort of bellwether trial was being sought.  Sometimes, rarely, the result of a bellwether trial will be binding on the other cases. (For the moment, we are using deliberately vague language on this point.  More to come.) That definitely would meet the definition of a joint trial.  If that is what the plaintiffs want, they must go to federal court.  But much more typical is a bellwether trial  that would not be binding, but would be merely illustrative.   Such a bellwether trial, according to the Dunson court, would not be a joint trial and would not support CAFA jurisdiction.  The Dunson court assumes that when plaintiffs ask for a bellwether trial, they are asking for the non-binding member of the species.  Putting the burden on the defendant to show that the plaintiffs were proposing a joint trial, the Dunson court held that such a showing had not been made, that the plaintiffs had not sought coordination “for all purposes” as in Corber, and that, thus, remand to state court was appropriate.  A dismal day for the defense.  (The Dunson court supported some of its reasoning by citing another less-than-delightful Ninth Circuit case, Briggs, which we dissected here.)

There are many problems with the Dunson decision, including its departure from the pragmatic approach of Corber.   Experienced defense counsel know precisely what the plaintiffs want. They want a process that permits asymmetrical discovery where the defendants have to cough up millions of pages and scores of company witness depositions, while most of the plaintiffs’ individual cases hardly get tested.  That is, plaintiffs want a settlement machine.  The Dunson court pooh-poohed the preclusive effect of a bellwether trial because it would not have such effect on other plaintiffs.  But the Dunson court was forced to acknowledge that, “True, a verdict favorable to the plaintiff in the bellwether trial might be binding on the defendant under ordinary principles of issue preclusion, but that is not enough” (emphasis in original). How fair is that?  Moreover, the Dunson court ignores the plaintiffs’ own admissions of what they were up to in their consolidation request.  The plaintiffs wanted to avoid the risk of “inconsistent adjudications” (we bet the plaintiffs are pretty selective when it comes to that aversion) and they defined that risk as “different results tried before different judge and jury, etc.” The Dunson court admitted that such language “does suggest that a joint trial would be needed to avoid the risk of inconsistent adjudication.”  Yes. Yes, it does.  But the plaintiffs parked that language in a portion of their briefs generally extolling the wonders of consolidation (and overlooking the massive prejudice to defendants that can arise from consolidation), and the plaintiffs did, after all, remember to insert a disclaimer that they were not seeking a joint trial.

Look, we clerked on the Ninth Circuit and will defend it against all the usual ideological attacks.  But this time, the Ninth Circuit got CAFA removal wrong.  It ignored the Supreme Court’s admonition in Standard Fire Ins. Co. v. Knowles — a case nowhere even cited in Dunson — not to “exalt form over substance” in assessing CAFA jurisdiction.  Perhaps another en banc decision will ride to the rescue.

Regular blog readers may recall that, every year, we eagerly await a Monday and Tuesday right around February 14th.  This has nothing to do with Valentine’s Day (though we like a dozen roses and a box of chocolates as much as the next person.)  No, at this time every year (for the past eighteen or so) we cross our fingers that there is no blizzard, beg everyone in our work life to cover any emergencies, and head to New York for the Westminster Kennel Club Dog Show.  This year was the 141st annual show, and, as always, it was a mecca for all things dog.  As we ate breakfast in our hotel, we were visited by Mobius, a red Doberman so tall he had to lean down to attempt to taste our complimentary make-it-ourselves waffle.  To board the shuttle from the Hotel Pennsylvania (worthy of its own post) to Piers 92 and 94 for the daytime breed judging, we had to step over “Sky,” a 140-pound Greater Swiss Mountain Dog sprawled in the aisle of the bus, calmly oblivious to accidental bumps and kicks and happily kissing anyone who asked.  We live for this stuff, even if our chosen favorite almost never wins.

For the atmosphere is rarified. A few years ago, the show stopped being “champions only” and admitted “class dogs” – dogs still working their way through point-earning breed classes to achieve their championships – for the first time.  But, save for the infrequent upset, the group competition (the televised portion, in which the single winner of each breed competes against the winners from the other breeds in its “group” – sporting, herding, toy, etc.) is dominated by the very top-winning show dogs in the country.  Last year, we fell in love with a gorgeous German Shepherd Dog named Rumor.  She was a heavy favorite to win it all (“Best in Show”), but was upset by C.J. the German Shorthaired Pointer and settled for Reserve Best – second place.  And she retired, to raise beautiful puppies and live the life of a cherished house pet.

But, alas, said puppies did not get made on the first attempt. And, come January, Rumor’s owner/handler decided to give her one more shot at the big one.  So she “came back out,” showed at ten shows in January, and took one more run at the Garden.  And, this time, after upsetting the favorite, Preston the Puli, to take the Herding Group, she won it all.  It was very, very cool to witness.  And we already can’t wait ‘til next year.

And there was a blog-worthy lesson to be gleaned from it all (at least if you stretch a little): if you haven’t achieved everything you want, think about taking another shot.  And H.R. 985, a bill that passed the House Judiciary Committee this week, would pick up where CAFA left off (and then some) to correct still-rampant abuse of the system by class action and MDL plaintiff lawyers, to the detriment of our clients, the judicial system as a whole, and all too often, to the plaintiffs the lawyers ostensibly represent.

Under “Purposes,” the bill states: “The purposes of this act are to – (1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs with legitimate claims; (2) diminish abuses in class action and mass tort litigation that are undermining the integrity of the U.S. legal system; and (3) restore the intent of the framers of the United States Constitution by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles.”  Worthy goals all, if a trifle ambitious. The bill’s key points read like a set of nesting boxes – just when you think you’ve opened the last, there is another present inside.  Here are some highlights:

Class Actions

  • Injury allegations: this provision requires a court to deny certification unless “the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative.” This is ascertainability something for which we’ve advocated, and also something that our side tried unsuccessfully to get fixed through the Federal Rules Committee. Thus, the judiciary had its chance to fix this. Nothing happened, so now Congress is poised to step in. About time.
  • Conflicts of interest: this provision requires class counsel to state, in the body of the complaint, “whether any proposed class representative or named plaintiff in the complaint is a relative of, is a present or former employee of, is a present or former client of (other than with respect to the class action) or has any contractual relationship with . . . class counsel” and shall “describe the circumstances under which each class representative or named plaintiff agreed to be included in the complaint and shall identify any other class action in which any proposed class representative or named plaintiff has a similar role.”
  • Attorneys’ fees: “[N]o attorneys’ fees may be . . . paid . . . until the distribution of any monetary recovery to class members has been completed,” and “[u]nless otherwise specified by Federal statute, . . . the portion of any attorneys’ fee award to class counsel . . . shall be limited to a reasonable percentage of any payments directly distributed to and received by class members [and in] no event shall the attorneys’ fee award exceed the total amount of money distributed to and received by all class members.” We particularly like this because it would effectively put an end to cy pres, against which we’ve railed for years. By limiting the denominator for fee awards to “payments directly distributed to and received by class members” it prevents cy pres sums from being used to inflate fee awards.

There are other provisions, requiring stringent accounting provisions for settlement funds forbidding certification of issue classes unless all relevant Rule 23 prerequisites are satisfied (another thing our side tried first to fix through a change to Rule 23), and most significantly providing for severance of misjoined plaintiffs for purposes of jurisdictional determinations. This legislative elimination of fraudulent misjoinder is a key point, since it addresses the multi-plaintiff complaints we love to hate.

We note that since the “effective date” of this act provides for its application to all “pending” civil actions, cases currently in state court can be removed (or removed again) under the provision negating misjoinder as a means of preventing diversity-based removal to federal court.

Finally, in an issue close to our hearts as we daily encounter plaintiffs unwittingly victimized by so-called “litigation funders,” the bill provides, “In any class action, class counsel shall promptly disclose in writing to the court and all other parties the identity of any person or entity, other than a class member or class counsel of record, who has a contingent right to receive compensation from any settlement, judgment, or other relief obtained in the action.” A sunshine law for third-party funding is something else for which we’ve advocated.

Multidistrict Litigation:

  • Proof of exposure and injury: We were thrilled to see a “Lone Pine”-esque provision build into the MDL portion of the bill. It provides, in pertinent part, “In any coordinated or consolidated pretrial proceedings . . . , counsel for a plaintiff asserting” a claim seeking redress for personal injury [in the MDL] shall make a submission sufficient to demonstrate that there is evidentiary support (including but not limited to medical records) for the factual contentions in the plaintiff’s complaint regarding the alleged injury, the exposure to the risk that allegedly caused the injury, and the alleged cause of the injury . . . within 45 days after the civil action is transferred to or directly filed in the proceedings. That deadline shall not be extended. Within 30 days after the submission deadline, the judge . . . shall [determine] whether the submission is sufficient and shall dismiss the action without prejudice if the submission is found to be insufficient.” Thirty days later, in the continued absence of a satisfactory submission, the action is to be dismissed with prejudice. Not long ago, we advocated for amending the MDL statute to require early factual disclosure, with dismissal as the sanction for not disclosing enough to satisfy Rule 8. This is the functional equivalent.
  • Trial Prohibition (“waiving Lexecon”): MDL judges “may not conduct any trial in any civil action transferred to or directly filed in the proceedings unless all parties to the civil action consent to trail of the specific case sought to be tried.” This provision would remove the threat of MDL trials as a tool to force defendants to settle. It is something else for which we have advocated.
  • Ensuring Proper Recovery for Plaintiffs: MDL plaintiffs “shall receive not less than 80 percent of any monetary recovery obtained in that action by settlement, judgment or otherwise.”

While most of the press coverage seems to focus on class actions, to us the removal and MDL provisions are at least as important. The vast bulk of our professional life is spent in the mass tort space – mostly MDLs these days, with the occasional class action thrown in. We have become accustomed (but never inured) to plaintiffs without injuries herded by counsel who are their friends or bosses into mass actions in which they don’t belong. On the other end of the spectrum, we encounter severely injured plaintiffs who will recover next to nothing because lawyers and litigation funders own most or all of the plaintiffs’ stakes in the inevitable settlements. And, at every turn, we sit across the table from tanned and affluent plaintiff attorneys who are the only ones apparently immune to the vagaries of the system and who are the sole beneficiaries of its inequities. H.R. 985, as drafted, attempts to address many of these issues. We do have questions. Who defines “the same type and scope of injury,” for example? And we have doubts: can a bill possibly survive the powerful plaintiff attorney lobby when it attempts to resurrect the integrity of mass litigation by hitting those attorneys squarely in their pocketbooks? But we heartily and excitedly support this bill, and we know that some of its provisions are way, way better than none. We will keep you posted.

Permitted gamesmanship versus prohibited conduct.  That is the dichotomy that one district judge adopted to describe the transparent forum manipulation that some plaintiffs undertake under CAFA.  To be honest, neither characterization is terribly flattering:  Either plaintiffs are openly gaming the system to avoid federal jurisdiction under CAFA, or they are engaging in conduct that a federal statute downright prohibits.  Either way, the result should be an order for the defense.

Well, neither the world nor the law is perfect, as the Ninth Circuit reminded us last week in an opinion remanding hundreds of claims relating to the same prescription drug.  Briggs v. Merck Sharp & Dohme, No. 15-55873, 2015 WL 4645605 (9th Cir. Aug. 6, 2015).  To back up a little, the issue is “mass action” jurisdiction under CAFA, a topic that we have been tracking for some time (including here, here, and here).  As our readers know, CAFA permits removal of “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  28 U.S.C. § 1332(d)(11)(B)(i).  This has led to the widespread practice of plaintiffs’ attorneys gathering up hundreds of unrelated plaintiffs claiming injuries related to the same product or related products.  But rather than file one complaint for each plaintiff or file one consolidated complaint (either of which would almost always result in undisputable removal jurisdiction), the plaintiffs’ attorneys divide their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  This is their extraordinarily transparent attempt to avoid removal under CAFA “mass action” jurisdiction.

It should not work, and it did not work last year in Corber v. Xanodyne Pharmaceuticals, Inc., 771 F.3d 1218 (9th Cir. 2014).  In Corber, the Ninth Circuit held that several mass complaints, taken together, constituted a CAFA mass action.  The Court of Appeals’ reasoning was solid:  The plaintiffs collectively numbered more than 100, and the plaintiffs had proposed that their cases be tried jointly within the meaning of CAFA when they petitioned to coordinate their complaints before one California state judge “for all purposes.”  As we pointed out when we first wrote on Corber, coordination “for all purposes” is the only kind of coordination that California’s rules permit.

Continue Reading More CAFA “Mass Action” Gamesmanship In The Ninth Circuit

We will never forget our first removal under the Class Action Fairness Act.  It was circa 2006, shortly after President Bush signed CAFA into law, when we received word of a complaint against our client filed in California state court with more than 100 plaintiffs claiming injuries from the same prescription drug.  Aha!  A removable mass action, we thought.  And before we knew it, we had the case in federal court under CAFA jurisdiction, poised to be transferred into a distant MDL.  After all, the plaintiffs were almost all litigation tourists with no connection whatsoever to the Golden State.

Careful readers have already discerned the end to this story.  Mass actions removed under CAFA may not be transferred to an MDL under the MDL statute (28 U.S.C. § 1407) unless a majority of the plaintiffs request the transfer.  See 28 U.S.C. § 1332(d)(11)(C)(i).  No such a request was forthcoming in our case.  In the words of our favorite post-modern philosopher, Homer J. Simpson, “D’oh!”  We and our more-than-100 adversaries remained in California, a beautiful place to be for many reasons, but not the proper forum for these non-California plaintiffs and their lawyers.

Since those early days, we have come across two ways to transfer a CAFA mass action to an MDL, notwithstanding CAFA’s prohibition on section 1407 transfers.  The first is to state an alternate basis for removal jurisdiction, such as federal question jurisdiction or diversity jurisdiction based on fraudulent joinder or misjoinder.  The JPML has permitted transfer of CAFA mass actions to multidistrict litigation, so long as CAFA is not the only basis for removal jurisdiction.  The most-cited example comes from the Darvocet MDL.  See In re Darvocet, Darvon and Propoxyphene Prods. Liab. Litig., 939 F. Supp. 2d 1376 (J.P.M.L 2013) (“Section 1332(d)(11)(C)(i) does not prohibit Section 1407 transfer of an action removed pursuant to CAFA’s mass action provision so long as another ground for removal is asserted.”).

The second method is to seek transfer not under section 1407, but instead under 28 U.S.C § 1404, the general venue transfer statute.  This strategy also comes out of the Darvocet litigation, Romo v. McKesson Corp., No. ED 12-2036, 2015 WL 3622620 (C.D. Cal. June 9, 2015), and all we can say is that we wish we had thought of it ourselves.  We have written before
on Romo in connection with the Ninth Circuit’s opinion holding that hundreds of claims related to one prescription drug constituted a CAFA mass action, even though counsel tried strategically to evade federal jurisdiction by dividing the plaintiffs into multiple civil actions of slightly under 100 plaintiffs each. Continue Reading How to Transfer a CAFA Mass Action to an MDL

This morning the United States Supreme Court decided Dart Cherokee Basin Operating Co. v. Owens, No. 13-719, slip op. (U.S. Dec. 15, 2014), holding that removal under the Class Action Fairness Act (“CAFA”) requires no evidentiary submission regarding the amount in controversy beyond that alleged in the notice of removal.  The statute “tracks” Fed. R. Civ. P. 8’s “short and plain” pleading requirement.  Slip op. at 5-6.  Nothing more in the way of evidence is required as a prerequisite to removal.  “[W]hen a defendant seeks federal-court adjudication, the defendant’s amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court..”  Id. at 5.  Only a “plausible allegation” is necessary.  Id. at 7.  If the amount in controversy is contested, then a hearing is held with the defendant having the burden of proof by a preponderance of the evidence.  Id. at 6.  That happens, of course, after removal – not as a prerequisite to it.  Id. at 7.

We might not have done a breaking news post about Dart, except for this:  In a statement that will be very useful in future CAFA removals, the Court broadly rejected any presumption in favor of remand in CAFA cases – and did not endorse such a presumption in any removal situation:

We need not here decide whether such a presumption is proper in mine-run diversity cases.  It suffices to point out that no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.
Dart, slip op. at 7.

The vote was ostensibly 5-4, but the split decision concerned procedural matters – whether it was appropriate to decide the case (slip op. at 7-14) – rather than disagreement over CAFA requirements.  We’ll leave that argument to Supreme Court wonks.

On the issue we care about, none of the justices expressed disagreement with the majority’s analysis.

We read with great interest the Ninth Circuit’s recent opinion on CAFA “mass action” jurisdiction, Corber v. Xanodyne Pharmaceuticals, Inc., No. 13-56306, 2014 WL 6436154 (9th Cir. Nov. 18, 2014).  If you have not read it yet, you should.  We hesitate to call it a blockbuster, since we think the opinion’s reasoning is more narrow that it needed to be (more on that later).  But the result (holding that CAFA removal was proper) is clearly correct, and the opinion hopefully will become a stalwart against one of the more brazen abuses that we see in pharmaceutical litigation – the disingenuous joining of hundreds of unrelated plaintiffs in multiple complaints in a single jurisdiction, but with each complaint numbering fewer than 100 plaintiffs in order to avoid CAFA removal.

It is a form of “litigation tourism”—the mass importation of plaintiffs into jurisdictions that have no interest whatsoever in adjudicating their claims—and we have always wondered why courts tolerate it.  It has become a particular problem in California, whose underfunded courts are clogged as it is and whose taxpayers should not have to subsidize transient plaintiffs and the attorneys who represent them.

You won’t find this context in Corber, but trust us, it’s simmering there just beneath the surface.  Corber was one of multiple complaints filed in California state court alleging injuries in connection with the prescription drug propoxyphene.  The complaints together asserted the claims of hundreds of unrelated plaintiffs from all parts.  But rather than file one complaint for each plaintiff (which would have subjected the vast majority to removal under standard diversity jurisdiction) or file one consolidated complaint (which clearly would have been removable as a mass action under CAFA), the plaintiffs’ attorneys divided their clients into multiple mass complaints, with each complaint including at least one non-diverse plaintiff to defeat complete diversity and each numbering fewer than 100 plaintiffs.  To review, CAFA permits removal of “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact.”  28 U.S.C. § 1332(d)(11)(B)(i).  So 100 is the somewhat-magic number that plaintiffs are careful to stay beneath, which these plaintiffs’ lawyers scrupulously did.

Continue Reading The Ninth Circuit’s Must-Read Opinion on CAFA Jurisdiction

The expansion of the DDL’s home to include New York City has come with an unavoidable consequence: commuting.  Ah, the commute.  So many do it, so few want to.  Many of our readers undoubtedly do it.  And a January Monday seems like as good a time as any to muse about it.  Commuting is one-of-a-kind thing, a huge part of our lives that brings us into contact with so many people.  We see some of the individuals on our daily commute more often than we see co-workers and even relatives.  Yet we know nothing about them.

Well, we take that back.  Over time, you can learn quite a bit about them as you observe how they navigate the unspoken customs of commuting.  Of course, you first have to learn what those are.  And that’s not easy.  Some come from common sense, and some are complicated.  They can’t be learned by reading a manual.  They can, however, be learned from reading the faces of veteran commuters reacting to violations of those customs, especially by “rookies.”

Take, for instance, the recently started commute of this DDL blogger, which has been by bus.  The bus is an unusual choice, and with it has come some unusual customs.  The bus picks you up in an office building parking lot.  When you arrive for your first-ever commute, you look for a line that has formed to get on the bus, but you don’t find one.  But you’d better believe it’s there.  It’s just not obvious.  Confused, you look around.  It’s not until another commuter – clearly a veteran – arrives that you find it.  She parks her car, gets out, walks over to a particular spot in the parking lot and places something small on the ground.  You look closer and see that it’s a small umbrella and it’s now sitting at the end of a line of other small items: water bottles, umbrellas, eyeglass cases, bags, and other things.

She walks back to the warmth of her car, as the light bulb goes on in your rookie head.  Aha!  Now you know what to do.  You search your car for something small.  But you’re unprepared.  You have only quarters.  You grab one, leap from your car, place it at the back of the line, and return to your car.  Nicely done.  You’re on-line.  You’re learning.  And you have to learn.  I hear tell of a “rookie” who didn’t know this system and simply walked to the front of the line as the bus arrived.  Big mistake.  The other commuters reacted like Donald Sutherland at the end of Invasion of the Body Snatchers.  Lesson learned.

Anyway, back to your first day.  After your quarter has been safely (you think) placed on line, others arrive and add their small items.  Soon the line has grown to 20 items.  The bus then arrives, and you and others emerge from your cars.  The others move quickly to their saved spot on line.  You don’t.  You’ve already screwed up.  You chose an impossibly small item.  You can’t see the quarter in the dark, especially now that people are standing along the line and moving toward the bus.  Oh, you try.  You wander around the line, impeding the movement of others as you repeatedly bend over looking for your quarter.  No chance.  You’re now the goofy little brother that bothers everybody and accomplishes nothing.  It’s useless.  You take your medicine and walk to the back of the line, defeated and 25 cents poorer.  No one says a word to you.  Who would want to talk to this guy?  “Rookie.”

It’s not over, though.  More awaits you on the bus.  Since you managed to work yourself to the back of the line (at the bus’s last pick-up stop), there are only a handful of empty seats waiting for you.  And they’re in the back.  So, after standing way too long in the front with a bewildered stare, you begin your walk of shame toward the back.  Making things worse, your walk takes you passed every single person who just witnessed your monkey act outside.  A number of people look away.  It’s not because they think that you’re a dummy – though they certainly do think that.  And it’s not because they have no interest in what you’re doing.  It’s because they, in fact, have great interest in what you’re doing.  They are obsessed with it.  They hate you and what you could do to them.  Why?  Because each of them has an empty seat next to them, and they don’t want you to sit in it.  This is the last stop before the long ride to NYC, and if you don’t take that seat they will enjoy that long ride spread out across two seats.  It’s all they’ve been thinking about since they went to bed last night.  This is apparently the Holy Grail of bus commuting, and they will do almost anything to get it.  They’ve made themselves and the area around them as unpleasant as possible.  They take up lots of space.  Their stuff is everywhere.  They look sullen, almost dangerous.  Their eyes never meet yours, because eye contact could lead to a gesture requesting that they clear space for you.  All their plans would be shattered.

So, in this comforting environment, you choose a seat.  You have to.  Somebody is going to be unhappy.  Most will accept their fate, relent and act courteously.  But the dead serious ones won’t.  A seat next to them is a long ride.  They’ll do anything they can to establish that this is their territory, and you’ve trespassed on it.  They’re playing the long game.  They don’t want you – or anyone else – to come back to that seat tomorrow.  Once they’ve done this enough, they figure that everyone will get the picture.

And with that, you’re off to New York City.  Darn – if you’d only had something other than that quarter.

There are many other mistakes you will make.  For instance, don’t try to leave the bus without returning your seat to its upright position.  Don’t dare.  If you do, the person in the seat behind you will send you a ferocious middle-school-like eye-roll and sigh, or stare you down like one of the assassins in “Scanners.”  (We won’t provide that link.  Too graphic.)

All of this happens – all of it – with no one speaking a word.

There’s more, much more.  But that’s enough for now.  We should address some law.  There has been additional “commuting” from state court to federal court within the Eighth Circuit as part of the transvaginal mesh litigation.  In November, we posted about the Atwell case, in which the Eighth Circuit refused to remand to state court of a group of transvaginal mesh cases.  Despite the plaintiffs’ assertions that they did not want to consolidate that group of cases, they did ask the state court to transfer three cases involving over 100 plaintiffs to a single judge for discovery and trial.  A single judge, according to the plaintiffs, would better allow for uniformity of rulings and a bellwether trial.  The Eighth Circuit held that these requests suggested a “joint trial” that triggered removal as a “mass action” under CAFA.

With that decision in the books, the Eastern District of Missouri is now following the Eighth Circuit’s lead.  In Brannen v. Ethicon, No.4:13-cv-01252-JAR, Slip Op. (E.D. Mo. Dec. 30, 2013), the district court denied a remand motion, citing the Atwell decision.  Lawyers representing over 100 plaintiffs had asked the state court to transfer all of those cases to a single judge who would handle not only pretrial issues but a bellwether trial.  The district court, not surprisingly, found this request to be functionally the same as the requests in Atwell, triggering CAFA removal.

The Eighth Circuit has now become a favorable jurisdiction in which to remove such cases.  Whether in their papers or at a hearing, if plaintiffs request coordination of 100 or more cases by a single judge for the purpose of bringing about consistent rulings across multiple plaintiffs and having that same judge preside over a bellwether trial, the defense should consider removal.  There’s strong precedent for it in the Eighth Circuit now.

And Happy Commuting.

The Eight Circuit issued an opinion last week that highlighted again how product liability complaints with multiple plaintiffs can be susceptible to removal to federal court under CAFA (the Class Action Fairness Act of 2005), particularly if the total number of plaintiffs across the grouped complaints is at least 100.  See Atwell v. Boston Scientific Corp., Slip Op. (8th Cir. Nov. 18,2013).

As a reminder, CAFA permits removal to federal court of “mass actions,” which include “any civil action . . . in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs ’ claims involve common questions of law or fact.  ” 28 U.S.C. §1332(d)(11)(B)(i).  In other words, there needs to be more than 100 plaintiffs and a proposal to jointly try their claims because they share fact or legal issues.  On the other hand, joint pretrial proceeding don’t trigger removal under CAFA.  28 U.S.C. §1332(d)(11)(B)(ii)(IV).  As a result, we more and more see plaintiffs’ lawyers at case management conferences renouncing that they are seeking joint trials or consolidation of cases for trial.  They know that, if they do, they’ll receive a notice of removal the very next day.

The Atwell case is part of the transvaginal mesh litigation, and there were three separate groups of plaintiffs – the Atwell group, the Evans group and the Taylor group.  Atwell, slip op. at 2-3.  Each set of plaintiffs did their best to avoid removal, but couldn’t.

Continue Reading Eighth Circuit Upholds Removal under CAFA of Several Multiple-Plaintiff Product-Liability Complaints